FINE, THOSE ROUTING NUMBERS SUCKED ANYWAY, SEE IF WE CARE

There are few things more delightful to me than capable pro bono counsel putting a censorious bully in its place. The firm Martin & Associates of Vermont has delighted me today.

Our story begins back in June. As Mike Masnick at TechDirt reported, the American Banker's Association and its law firm, Covington & Burling, threatened a blogger named Greg Thatcher, who had compiled an online list of routing numbers for banks. Those numbers are publicly available on the Federal Reserve's web site. The ABA says it created routing numbers and doing so took "creativity" and Greg's infringing their copyright. This argument is like the Post Office suing you for posting a list of zip codes.

If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and We have lollipops for people who serve process. So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple. We eagerly await your reply.

I write today with two delightful updates. First, Martin & Associates waited for some time for a reply. One must wait when dealing with a large and venerable firm like Covington & Burling, the sort of place where the stick up their ass has a stick up its ass. Eventually curiosity quite overcame the better angels of Andrew Delaney's nature and he sent this letter to the ABA's attorney Nigel Howard:

It has been just over two months since we last wrote. We expected a response but none has been forthcoming. We have therefore advised Mr. Thatcher to reestablish the routing-numbers section of his website. As a courtesy, we wanted to let you know.

We have not received any response or counter analysis, and we cannot conceive of any reasonable explanation why these identifYing numbers might fall within copyright protection's purview. If you have such an explanation, feel free to share.

If you're ever in Vermont, please stop in so we can chat. Lunch is on us.

This is a very polite lawyerly way of telling someone they are full of shit.

Today, Mr. Howard finally responded to Mr. Delaney's letter. Did he respond to Mr. Delaney's copyright arguments or meet the challenge to support his position? He did not. This was the sum total of his argument about the ABA's copyright:

As I've mentioned before, this is known as the Canadian Girlfriend school of legal argumentation.

Mr. Howard goes on to concern troll a bit:

In addition to infringing the ABA's copyright, Mr. Thatcher's actions may put the public at risk. We have found instances where unauthorized sites are disseminating inaccurate information.

Mr. Howard does not cite any inaccurate information on Mr. Thatcher's site. He simply says that there is inaccurate information out there, and that's bad, and mumble mumble [trails off awkwardly].

Even the data in the FedWire and FedACH files that are currently available from the Federal Reserve website are not entirely up to date.

If you're keeping score at home, the ABA just admitted that the data on the Federal Reserve's website may not be accurate, and they are responding by . . . hiring Covington & Burling to pester a blogger.

Mr. Howard also accuses Thatcher of misusing information from the Federal Reserve to populate his website:

The Federal Reserve website states that the information may not be sold, re-licensed or otherwise used for commercial gain. Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction.

Now, Mr. Howard doesn't say that he's representing the Federal Reserve now in addition to the ABA, so I'm sure he's just saying that to be helpful.

Mr. Howard concludes:

The ABA is committed to providing only the most accurate information possible on Routing Numbers and is continuing to take steps to address this problem.

"Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction."

I've started using Disconnect instead of DoNotTrackMe, so maybe my new tool is defective or something–it didn't find any ads or trackers on Thatcher's site. Then again, neither did AdBlock Plus. Perhaps it too is broken.

Nice, but I'm not sure they are copyright lawyers. Sounds like they have not heard of the Berne Convention, "…the United States became a member of the Berne Convention on March 1, 1989." … "the United States changed its law on March 1, 1989, to make the use of a copyright notice optional."

Last I heard, 1909 and 1911 pre-date the convention; publication without the notice may well have allowed some combinations of 4 digits to slip into the public domain. For at least some years, the banksters would need to find the author of those numbers and have him re-assign the copyrights to them.

Back round 1993, when I worked for a Federal Agency, and all documentation and regulations existed only on paper, one of our more ambitious managers sold (!) the right to digitize our own set of regulations to a private company. They were given the exclusive right to digitize the regs and sell copies on CDs. I heard about it when I started up a project to make digital copies of the regs available on the WWW, which was just coming into existence.

The manager who made the deal insisted that this private company had the exclusive right to digital regulations, for at least 3 years, and I had to stop that part of the project. I never found out what happened to the deal when Newt Gingrich had the Library of Congress digitize everything and make it available for free. I wonder if the company sent Newt a nasty letter…

This makes me happy. I actually sent an email to Ken about this in July, but it looks like he was already on the case and aware. I use(d) this site extensively at work and was pretty bummed when I saw the news about the bully tactics. Pretty pumped that things will get sorted out for the better.

So isn't the ABA violating the cited Federal Reserve statement that the numbers may not be used for gain by claiming them as their property? It's handy when the opposition provides the evidence that they are not entitled to what they are claiming is theirs.

Feist and "words and short phrases" are essentially the only two things that you need to know here.

Feist — Supreme Court decision that held that facts and mere compilations of facts are not copyrightable subject matter. While a particular selection and arrangement of fact can include expression worthy of copyright, that protection is thin and good judges will be very interested in separating creative expression from attempts to protect mere "sweat of the brow" effort.

"words and short phrases" 37 C.F.R. 202.1(a) and its predecessors have exluded names, titles, and slogans and the like, no matter how pithy, from copyright protection since well before the 1976 act. You can argue whether that regulatory policy is sound, but it is so.

Delancy and Pivar-Federici (the authors of the letter) appropriately dug up Feist but didn't dig up the "words and short phrases" exclusion. Nor raise the fact that you must register the copyright before bringing a suit for copyright infringement. Probably too much geekery, but I would have loved to see an alternate closing such as "If you do feel it's necessary to sue our client, please have your complaint with attached copyright registration certificate served upon us by flying pig. We're confident that anyone able to obtain a registered copyright in a 9 digit number could easily fulfill such a comparatively simple request."

The prohibition on copyright for works of the federal government is not as clear cut as that. Contractors and employees of contractors can produce copyrightable works and be required to assign the copyrights to the government under the contract.

Also, the Federal Reserve is a messy system with a core that is essentially a Federal agency, but component Federal Reserve Banks that have a weird hybrid legal status (see summary of Lewis v. U.S.). This considerably complicates matters.